Cross-complaint filed regarding property damage and negligence claims.

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO WILLIAM GILBERT and JEAN GILBERT, Plaintiff, v. SAN CARLOS KITCHEN AND BATH REMODEL dba WINDOWS UNLIMITED, JAMES W. FOWLER, and DOES 1 through 30, inclusive, Defendant. JAMES W. FOWLER, individually and dba SAN CARLOS KITCHEN AND BATH AND WINDOWS LIMITED erroneously sued as SAN CARLOS KITCHEN AND BATH REMODEL dba WINDOWS UNLIMITED, Cross-Complainant, v. NICK WAYNE FOSTER, JR., individually and dba FINISH LINE CONSTRUCTION; JESSE JOHN CISNEROS, individually and dba A P M and A P M SHOWER PANS, and ROES 1 through 20, inclusive, Cross-Defendants. Case No. 25-CIV-02121 DEFENDANT JAMES W. FOWLER and JAMES W. FOWLER dba SAN CARLOS KITCHEN AND BATH and WINDOWS LIMITED erroneously sued as SAN CARLOS KITCHEN AND BATH REMODEL dba WINDOWS UNLIMITED'S CROSS-COMPLAINT FOREQUITABLE INDEMNITY; IMPLIED INDEMNITY; COMPARATIVE FAULT; AND APPORTIONMENT OF FAULT DEFENDANT JAMES WALTER FOWLER'S CROSS-COMPLAINT FOR EQUITABLE INDEMNITY; IMPLIED INDEMNITY; COMPARATIVE FAULT; AND APPORTIONMENT OF FAULT COMES NOW, Cross-Complainant JAMES W. FOWLER, individually and dba SAN CARLOS KITCHEN AND BATH REMODEL and WINDOWS UNLIMITED (hereinafter "Cross-Complainant"), complains and alleges as follows: PRELIMINARY ALLEGATIONS 1. At all times herein mentioned Cross-Complainant JAMES W. FOWLER, individually and dba SAN CARLOS KITCHEN AND BATH REMODEL and WINDOWS UNLIMITED, was a California resident and at all relevant times, authorized to do business under the law of the State of California and County of San Mateo. 2. Cross-Complainant is informed and believes that at all times herein mentioned, Cross-Defendant NICK WAYNE FOSTER JR., individually and dba FINISH LINE CONSTRUCTION (California State Contractors License No. 976625; hereinafter "FINISH LINE") was and is an individual doing business as FINISH LINE CONSTRUCTION authorized to do business under the laws of the State of California and County of San Mateo. 3. Cross-Complainant is informed and believes that at all times herein mentioned, Cross-Defendant JESSE JOHN CISNEROS dba A P M and A P M SHOWER PANS (California State Contractors License No. 881091; hereinafter "APM") was and is an individual doing business as A PM and APM SHOWER PANS, and was authorized to do business under the laws of the State of California and County of San Mateo. 4. The true names and capacities, whether individual, corporate, associate, or otherwise of Cross-Defendants are presently unknown to Cross-Complainant who thereby sue said Cross-Defendants by such fictitious names. Cross-Complainant will amend this CrossComplaint at such time Roes 1-20's true identities become known to them. Cross-Complainant is informed and believes and thereon allege that each of the Cross-Defendants designated herein as Roe 1-20 is responsible in some manner for the allegations herein and caused damage to these Cross-Complainant. The Cross-Defendants specifically named above and Roes 1-20 are hereinafter collectively referred to as "Cross-Defendants." 5. Plaintiffs filed their initial Complaint on March 25, 2025, in San Mateo County Superior Court, Case No. 25-CIV-02121 (the "Complaint"). Plaintiffs alleged in the Complaint that they are the owners of the real property located at 730 Knoll Drive, San Carlos, California ("the PROPERTY" or "The Oak Knoll Home."). Plaintiffs further allege that Cross-Complainant's negligent deck and roof construction on the PROPERTY caused damage to the PROPERTY, along with other damages to Plaintiffs' personal property. The Complaint is incorporated by reference for the limited purpose of setting forth Plaintiffs' claims. CrossComplainant expressly denies each allegation in the Complaint and denies he is liable to Plaintiffs, or any other person or entity for the amounts alleged in the Complaint or any amount whatsoever. 6. Cross-Complainant is informed and believes, and thereon alleges, that at all times relevant herein, Cross-Defendants, including the fictitiously named defendants, and each of them, were agents, servants, and employees of the other cross-defendants, and in engaging in the conduct alleged herein, were acting with the course and scope of such agency and employment with the consent and permission of their co-defendants herein, and each of them. Alternatively, said fictitious cross-defendants have a legitimate and material interest in the determination of the outcome of the present dispute. FINISH LINE and APM were hired by Cross-Complainant as sub-contractors, with the knowledge and consent of Plaintiffs in order to perform the repairs to the deck and waterproofing at the Oak Knoll Home. 7. Cross-Complainant is informed and believes that at all times herein mentioned Cross-Defendants, including Roes 1-20 inclusive, and each of them, are either individuals or factiously named business entities registered and authorized to and doing business in the State of California, and are responsible directly or vicariously liable for the events and happenings herein referred to and caused or are responsible for the damages sustained by Plaintiffs and or other Cross-Defendants, if any, and by Cross-Complainant. 8. Cross-Complainant is informed and believes that Cross-Defendants, including Roes 1-20 inclusive, doing business in the State of California, and that the aforementioned Cross-Defendants are contractors and/or design professionals on the Project which is the subject of this lawsuit; and further that regarding aforementioned Cross-Defendants and Roes 1 through 20, such Cross-Defendants participated in some manner in the construction, design and provision of materials to the Project which is the subject of this action. FIRST CAUSE OF ACTION IMPLIED INDEMNITY (As to All Cross-Defendants and Roes 1-20) 9. Cross-Complainant re-alleges all of the allegations contained in the preceding paragraphs. 10. If Cross-Complainant is held liable on any Complaint or Cross-Complaints, such liability will be based not on any act of wrongdoing on the part of the Cross-Complainant, but solely on the acts or omissions of those Cross-Defendants named herein. In particular, CrossComplainant is informed and believes and thereon allege that the damages, if any, sustained by Plaintiffs or any party that may file a Cross-Complaint against Cross-Complainant were primarily, actively, or ultimately caused by the negligent or wrongful acts or omissions of those Cross-Defendants named herein, who failed to perform their respective duties related to the Property, whereas any liability of the Cross-Complainant is secondary, passive, or derivative in nature only. 11. As a result of the above-mentioned acts and omissions of those Cross-Defendants named herein, Cross-Complainant has been forced to engage the law firm of Ropers Majeski PC to represent him in this litigation, will engage the services of experts, and will expend other costs in defending the Complaint and any Cross-Complaints filed by any other parties. Service of this Cross-Complaint constitutes a demand that Cross-Defendants named herein defend Plaintiffs' Complaint and any Cross-Complaints filed against Cross-Complainant. 12. For the foregoing reasons, Cross-Complainant is entitled to total and complete indemnity from those Cross-Defendants named herein for any damages that Plaintiffs or any party that may file a Cross-Complaint against Cross-Complainant and may recover against Cross-Complainant and for any sums expended by Cross-Complainant to settle any claims asserted in the Complaint or any Cross-Complaints, as well as for costs, expert fees, and under Code of Civil Procedure � 1021.6, any attorney fees expended by Cross-Complainant in defending the Complaint or any Cross-Complaints filed by other parties. WHEREFORE, Cross-Complainant prays for judgment against Cross-Defendants named herein as hereinafter set forth. SECOND CAUSE OF ACTION EQUITABLE INDEMNITY (As to All Cross-Defendants and Roes 1-20) 13. Cross-Complainant re-alleges and incorporates each of the preceding as though fully set forth herein. 14. In the event Plaintiffs or any other party recover damages against Cross-Complainant in the present action, then said damages were proximately caused by the primary and active negligence or other fault of Cross-Defendants, and each of them, and any acts or omissions on the part of this Cross-Complainant were passive in nature and/or secondary to the acts and/or omissions of Cross-Defendants, and each of them. 15. As a direct, proximate result of the primary, active negligence or other fault of Cross-Defendants, and each of them, this Cross-Complainant has incurred and continues to incur costs, attorneys' fees and other losses and damages in responding to the Complaint and any Cross-Complaints in this Action. 16. By reason of the foregoing, this Cross-Complainant is entitled to full or partial indemnity from Cross-Defendants and each of them, in the amount of any damages awarded in favor of Cross-Defendants or any other party to this litigation and against this Cross-Complainant plus costs of defense and attorneys' fees incurred. WHEREFORE, Cross-Complainant prays for judgment against Cross-Defendants as hereinafter set forth. THIRD CAUSE OF ACTION COMPARATIVE FAULT (As to All Cross-Defendants and Roes 1-20) 17. Cross-Complainant herein incorporates by reference each of the preceding allegations as though full set forth herein. 18. Cross-Complainant at all times denies any and all liability in connection with the incident and damages alleged in the Complaint, but in the event that Plaintiffs establish liability against Cross-Complainant, Cross-Complainant alleges that such liability exists as a direct and proximate result of the negligence and carelessness of the Cross-Defendants, and each of them. 19. Cross-Complainant is entitled as a matter of law to a judicial determination apportioning and affixing the comparative negligence of each Cross-Defendant for any damages awarded to Plaintiffs in this action. Cross-Complainant further alleges that it is entitled to relief from the Court in the form of monetary, evidentiary and/or issue sanctions as a result of the Cross-Defendants' failure to preserve important evidence and their destruction of evidence. 20. Cross-Complainant is informed and believes that an actual controversy now exists between Cross-Complainant and Cross-Defendants, and each of them, as to the rights of indemnity and comparison of negligence and Cross-Complainant contends an indemnity obligation exists whereas Cross-Defendants deny that such an indemnity obligation exists. A multiplicity of actions will be avoided by resolution of this cross-complaint in the same action as that filed by Plaintiff. WHEREFORE, Cross-Complainant prays for relief as hereinafter set forth. FOURTH CAUSE OF ACTION APPORTIONMENT OF FAULT (As to All Cross-Defendants and Roes 1-20) 21. Cross-Complainant hereby incorporates each preceding paragraphs 1 through 11 of this Cross-Complaint as though fully set forth herein. 22. Cross-Complainant is informed and believes that each Cross-Defendant was responsible, in whole or in part, for the incident and damages, if any, suffered by Plaintiff. 23. If Plaintiffs recover a judgment against Cross-Complainant and Cross-Defendants, or any of them, in the principal action, such judgment should be apportioned between Cross-Complainant and the Cross-Defendants, and each of them, on theories of relative fault, equitable indemnity, partial indemnity, or total indemnity. WHEREFORE, Cross-Complainant prays for relief as hereinafter set forth. PRAYER WHEREFORE, Cross-Complainant prays for judgment as follows: 1. For an order of the court declaring the rights of Cross-Complainant to a defense and indemnity from Cross-Defendants, and each of them; 2. For declaratory judgment, adjudicating the obligations of Cross-Defendants, and each of them, to defend and hold harmless Cross-Complainant from any judgment or settlement herein and to reimburse Cross-Complainant for all costs, expenses, and other damages incurred in defending this action and in prosecuting this cross-complaint; 3. For an order of the court determining the comparative degree of fault of each party and the portion of their respective responsibility for Plaintiffs' damages, if any; 4. For costs of suit incurred herein; and 5. For such other and further relief as the court deems just and proper. Dated: May 30, 2025 ROPERS MAJESKI PC By: TODD A. ROBERTS ALEXANDRIA C. CARRAHER CHLOE J. LOOMER Attorneys for Defendants and Cross-Complainants JAMES W. FOWLER and JAMES W. FOWLER dba SAN CARLOS KITCHEN AND BATH and WINDOWS LIMITED erroneously sued as SAN CARLOS KITCHEN AND BATH REMODEL dba WINDOWS UNLIMITED